The Backlash Argument Again.

August 9, 2010

In the wake of the Perry v. Schwarzenegger decision, I've been disappointed not to see a pure expression of the counter-mobilization myth -- the argument that policies enacted by judges produce more backlash than policies enacted by elected officials. Steve Chapman has decided to fill the void:

The decision may very well lead the Supreme Court to rule in favor of same-sex marriage. If so, it would be the most polarizing decision since Roe v. Wade in 1973, which we are still fighting about. It would spark a furious backlash from Americans who, whatever their views about homosexuality, think such decisions belong with them and their elected representatives. It could even lead to a constitutional amendment overturning the decision.

A few of the obvious problems here:

The discussion of Roe v. Wade conveniently elides the distinction between "polarizing" and "unpopular." It's true that abortion is subject to political dispute -- just as it was before the Supreme Court intervened -- but it's completely false to imply that Roe is evidence that the public doesn't tolerate judicial intervention. In fact, Roe v. Wade has been consistentlysupported by substantial public majorities. Far from demonstrating that Americans are uniquely hostile to judicial review, Roe in fact demonstrates that the public evaluates judicial opinions on substance, not procedure.

With respect to same-sex marriage, it should be noted that we've heard this song before. Every previous judicial opinion favoring same-sex marriage has been met with arguments that there would be a huge backlash against same-sex marriage rights. But, in fact, public support for same-sex marriage has continued to increase, and with the exception of California (where support for same-sex marriage was still much greater than in the previous referendum) victories in the courts have been perfectly stable. Predictions that same-sex marriage would be a major issue in Iowa elections following the state court's legalization of same-sex marriage have proved to be unfounded.

As to the claim that there would be a federal constitutional amendment overturning a decision legalizing same-sex marriage, all I can say is -- care to make it interesting? I'd love to know where Chapman thinks the 67 votes in the Senate for an amendment are going to come from, or a list of the 38 states that would vote to recriminalize same-sex marriages. Such an amendment has exactly as much chance of passing as a constitutional amendment reversing Roe v. Wade -- i.e. none.